Disclaimer

Neither the Air & Waste Management Association 

(A&WMA), its officers and directors, nor the presenters 

and author(s) of this work, their employers, the 

Environmental Protection Agency, or their employers’ 

officers and directors, warrant or represent, expressly or by 

implication, the correctness or accuracy of the content of 

the information presented. The opinions of the speakers 

are theirs solely.

The user/viewer accepts any legal liability or responsibility 

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April 20, 2016
Risk Management Modernization Rule

Jim Belke, Office of Emergency Management, USEPA

 Proposed rule published March 14, 2016 at 

https://www.gpo.gov/fdsys/pkg/FR-2016-03-

14/pdf/2016-05191.pdf

 Submit comments on or before May 13, 2016 at 

http://www.regulations.gov/#!docketDetail;D=EPA-HQOEM-2015-0725

 Proposed Changes to RMP Rule Q&As: 

https://www.epa.gov/rmp/frequent-questions-proposedchanges-risk-managment-program-rmp-rule 
Background

 On August 1, 2013, President Obama issued Executive 

Order (EO) 13650: Improving Chemical Facility Safety and 

Security following several catastrophic chemical facility 

incidents in the United States. 

 Focus is to reduce risks associated with hazardous 

chemicals by enhancing the safety and security of chemical 

facilities.

4
Background

 The keys areas of emphasis under the EO are:

 Strengthening community planning and preparedness,

 Enhancing federal operational coordination,

 Improving data management, and

 Modernizing policies and regulations.

 EPA issued a request for information (RFI) on July 31, 2014, and 

 Convened a Small Business Advocacy Review panel on November 

4, 2015.

 Proposed rule published March 14, 2016

 OSHA also considering revisions of the PSM standard and has 

initiated a Small Business Advocacy Review Panel. For more info, 

see: https://www.osha.gov/dsg/psm/index.html

5
Overview of RMP Proposed Revisions

P1 P2 P3

Third-party audits (applies to the next scheduled audit after an 

accident) [Estimated 150 accidents/year]

√ √

Incident Root Cause Analysis (only for facilities with 

accidents/near misses) [Estimated 300 incidents/year]

√ √

Safer Technologies and Alternatives Analysis (applies to a subset 

of P3 NAICS codes*) [Estimated 1,692 Facilities/4,308 Processes]

√

Coordinating Emergency Response Program Requirements with 

Local Responders

√ √

Emergency Response Exercises √ √

Information Sharing √ √ √

6

*Applies to paper manufacturing, petroleum and coal products manufacturing, and 

chemical manufacturing facilities 
Arijit Pakrasi, Ph.D., P.E., BCEE

CB&I
Risk Management Modernization Rule

Impacts

 Potentially affects 12,500 facilities

 Approximately $158.3 million in estimated annualized 

costs (EPA estimate)

 Largest cost items are current and new responders 

requirements, and safer technology and alternatives 

analyses, and information sharing

 Total annual damages cost estimated at $275 million from 

RMP facility accidents (EPA estimate)
Risk Management Modernization Rule

Timeline

 August 2013 - Executive Order 13650

 May 2014 - Working Group Report

 July 2014 - EPA RMP RFI

 December 21, 2015 – EPA proposed rule sent to OMB

 March 14, 2016 - Federal Register publication

 May 13, 2016 - Comment deadline

 Finalization - ?? 
Risk Management Modernization Rule

Scope

 An additional requirement for the process hazard analysis 

(PHA) required for Program 3 processes

 Increased emphasis on third party Audits after reportable 

accidents

 Root cause Analysis for incident investigation

 Enhancements to the emergency preparedness requirements

 Increased public availability of chemical hazard information

 Several other changes to certain regulatory definitions and 

data elements submitted in the RMPs
Overview of RMP Proposed Revisions

P1 P2 P3

Third-party audits (applies to the next scheduled audit after an 

accident) [Estimated 150 accidents/year]

√ √

Incident Root Cause Analysis (only for facilities with 

accidents/near misses) [Estimated 300 incidents/year]

√ √

Safer Technologies and Alternatives Analysis (applies to a subset 

of P3 NAICS codes*) [Estimated 1,692 Facilities/4,308 Processes]

√

Coordinating Emergency Response Program Requirements with 

Local Responders

√ √

Emergency Response Exercises √ √

Information Sharing √ √ √

11

*Applies to paper manufacturing, petroleum and coal products manufacturing, and 

chemical manufacturing facilities 
Discussed but Not Proposed

 Other Regulated Substances

 OCA data sharing

 Safety Critical Equipment

 Automatic Detection and Monitoring 

 RAGAGEP 

 Facility Siting Analysis

 Emergency Shutdown
Independent Third Party Audits

 Required for Program 2 or 3 Process

 In the next scheduled compliance audit following a 

reportable accident or within 12 months whichever is 

earlier 

 May also be required after findings of significant noncompliance by an agency

 Does not replace 3-year compliance audits
Independent Third Party Audits after 

Accident

 Accident Trigger

 Existing five-year accident history criteria

 On-site death, injuries, or significant property damage

 Offsite death, injuries, property damage, evacuations, sheltering 

in place, or environmental damage

 In lieu of internal compliance audit which is typical in 

most facilities

 Each covered process need to be evaluated in the audit

 Severe burden for large industrial complexes
Independent Third Party Audits after Agency 

Determination

 Based on Significant Non-Compliance from

 Previous audit

 Agency inspection

 Significant Non-Compliance

 Prevention program subpart C or D

 Deficiency of previous audit

 Written notification by agency required and negotiation 

possible
Independent Third Party Auditor 

Competence

 To be selected by the organization

 Knowledge of RMP Requirements

 Experienced with facility type and covered processes

 Experienced with applicable RAGAGEP

 Trained or certified in proper auditing techniques

 At least one member is a Licensed P.E.
Independence and Impartiality 

 Receive no financial benefit from outcome of audit 

 No existing or recent business relationship (3 years before 

and after the audit)

 All persons in the audit team will be required to sign CBI 

statement in the rule

 Auditors must have written policy to comply with 

competency, impartiality, and independence 

requirements
Audit Reports/Corrective Action Plans

 Must identify lead auditor and all participating personnel

 Summary of qualifications for meeting competency 

requirements

 Keep draft and final report for the past two RMP audits 

and submitted to implementing agency on request

 Company official will have to sign a certification 

statement for the third party audit
Audit Reports/Corrective Action Plans

 Submit report also to the implementing agency before or 

at the same time to the facility

 Report cannot be Attorney Client Privileged

 Corrective action plans must be generated within 90 days 

of the audit – also public documents 

 Copy to audit committee of Board of Directors
Independent Third Party Audit Comments 

Requested by EPA

 Applicability requirements

 Benefits and costs

 Documentation of competency, independence, and 

impartiality of third party auditors

 Third party auditor criteria

 Owner or operator obligations

 Correcting deficiencies and documenting them
Incident Investigation

 Applicable to Program 2 and Program 3 processes

 More specific definition of “Catastrophic Release” that 

triggers incident investigation

 “...... could reasonably have resulted.......” i.e. “near miss”

 “.......results in deaths, injuries, or significant damage onsite.......” 

 Not limited to off-site incidents anymore
Incident Investigation

 “Near Misses” have not been defined – EPA felt it was too 

difficult define this for all scenarios

 Rely of facility to identify the near misses as best as 

possible

 May add to the confusion for facilities and may lead to 

inconsistencies between facilities
Incident Investigation

 Significant expansion of scope of incident investigation by 

including a “Root Cause Analysis”

 A fundamental, underlying, system-related reason why an 

incident occurred that identifies correctable failure(s) in 

management systems.

 Any recognized methodology could be used with an 

analysis of contributory causes and root causes

 Reports also need to have a schedule for addressing 

recommendations
Incident Investigation

 Incident investigations are to be completed within 12 

months of a catastrophic release or a near miss

 May have extension in case of complex incidents

 Comments are sought on:

 Should investigation be completed before restart?

 Are the investigation timeframes adequate

 Would there be any conflict with root cause analyses in the 

NSPS and MACT rules 
Accident History Reporting

 Results of root cause analyses be included in accident 

history reporting to disseminate lessons learned

 Root causes may be categorized as “procedures”, 

“training”, “communications” for better analysis

 Schedule for accident history reporting is same as 

incident investigation – 12 months

 Sought comments on whether the reporting be limited to 

Program 3 processes only
Safer Technology and Alternative Analysis

 Applicable to only Program 3 processes in 

 Paper manufacturing (NAICS 322)

 Petroleum an coal products manufacturing (NAICS 324)

 Chemical manufacturing (NAICS 325)

 Purpose is to make the process safer through 

minimization, substitution, moderation, and 

simplification
Safer Technology and Alternative Analysis

 Conducted during the 5-yr PHA anniversaries

 Initial analysis is to identify safer alternatives; follow up 

analysis is to determine cost and feasibility of alternatives

 Hierarchies:

 IST or ISD

 Passive strategies: equipment design, process design; 

inventory management

 Active strategies: engineering controls, process controls

 Procedural measures
Safer Technology and Alternative Analysis

 Similar in process to NJ TCPA IST and Contra Costa County 

program

 Definition is vague and may include large number of 

alternatives – need to be prudent in selection

 General methodology is in CCPS guidance but many 

decisions are subjective – how safe is safe enough?

 Need for development of industry specific methodologies 

to be consistent between facilities 
Emergency Response Preparedness

 Applicable to Program 2 and Program 3 facilities

 Much more coordination with local response authorities 

to ensure resources and capabilities are in place

 Documented coordination annually

 If not adequate, facility may have to develop its own 

program – ultimate burden rests with facilities 

 The burden is tied to the statutory requirements of the 

“General Duty Clause” – no precedent
Emergency Response Preparedness

 Annual emergency notification system exercises with local 

response authorities - both field and table top exercises

 Field exercise will include simulation of the accidental 

release at least every five years

 Requires full exercise with notification, mobilization, 

coordination with local emergency responders, 

equipment deployment

 Table top exercise will be done annual except when field 

exercise is done

 Written report within 90 days
Information Availability

 Applicable to all RMP facilities 

 Annual summary notifications to LEPCs – public report

 Includes accident history, incident investigation, 

compliance audits, STAA reports, emergency response 

exercise summaries

 Some of these were not public reports earlier

 Limited CBI protection
Public Meeting/Score Card

 If qualified, facility is required to hold a public meeting 

within 30 days of an accidental release 

 Second public meeting if the incident investigation is not 

completed before this initial meeting

 Sought comments on 

 Should a “grade system” and “score card” should be used to 

rate a facilities performance for RMP compliance? 

 Should these be made available to LEPCs and public?

 How should this grading system be developed?
Streamlining

 Several data elements have been proposed for deletion, 

revision, and addition of data elements

 In most cases, the deletions are substituted with 

attestations of compliance – 12 substitutions for P3 

facility 

 Attestation take more time than reporting – not exactly 

streamlining
Requests for Comments

 Scope expansion of RCA

 Restart to require completion of Incident investigation report

 “Suggesting a concern” triggering a third part audit

 Draft audit report to regulatory authority prior to 

owner/operator

 STAA implementation

 Facility siting 

 Emergency shutdown
So What all of these mean to affected Facilities?

 Major expansion of effort to maintain compliance

 More rigorous compliance audits involving third 

parties

 Much more information will be in public domain and 

will be scrutinized in more detail

 Higher burden with facilities for ensuring emergency 

response preparedness
How to Prepare

 Develop a baseline of your affected processes 

 Program level; STAA analysis; RAGAGEP; documentation; 

incident investigation; emergency response; facility siting

 For large organizations with multiple affected facilities, 

develop compliance guidance for consistency

 Ensure a good auditing practice/team

 Ensure coordination with LEPC if not already 

 Engage management more actively in making decisions
Kenneth S. Komoroski

Morgan Lewis
Introduction – RMP Regulations

 Clean Air Act, Section 112(r) – requires EPA to promulgate rules for 

chemical accident prevention at facilities that use regulated hazardous 

substances  Risk Management Program 

 EPA coordinates this program with OSHA Process Safety Management 

(PSM)

 Every 5 years, covered facilities must submit Risk Management Plans 

(RMP). The Plan must include:

 Hazard Assessment

 Potential effects of release, accident history, worst case release evaluation

 Prevention Program

 Safety precautions/maintenance, monitoring, training

 Emergency Response Program

 Medical response, training measures, notice of release
Presidential Executive Order 13650

 EPA is proposing amendments in response to Presidential 

Executive Order 13650 (Aug. 1, 2013).

 Executive Order issued in response to “past and present 

tragedies.”

 West Fertilizer explosion – Texas 2013 (15 fatalities, 160 injured)

 BP Refinery explosion – Texas 2005 (15 fatalities, 170 injured)

 Tesoro Refinery explosion and fire – Washington (7 fatalities)

 Chevron Refinery fire – California 2012 (19 endangered 

employees, 15,000 residents sought medical treatment)

 Williams Olefins explosion and fire – Louisiana 2013 (2 fatalities 

and several injured)
Executive Order Goals

 Goal: To improve chemical facility safety and security in 

coordination with owners and operators.

 Goal: Improve coordination among the federal 

government, first responders and State and local entities.

 Goal: Identify opportunities and mechanisms to improve 

response procedures and to enhance information sharing 

and collaborative planning between chemical facility 

owners and operators, Emergency Planning Committees 

and first responders.
CAA 112r Authority

 Accident Prevention – EPA is authorized to promulgate 

“reasonable” regulations for release prevention, 

detection and correction requirements

 Regulations may include monitoring, recordkeeping, 

reporting, training, vapor recovery, secondary 

containment and other design, equipment, work practice, 

and operational requirements.

 EPA may provide technical assistance for “voluntary 

industry accident prevention standards”

 It appears EPA has gone beyond “voluntary” with the 

proposed amendments addressing prevention
Legal Issues

 Does EPA have the authority to go as far as it does in the 

proposed amendments?

 Root cause analysis

 Third party audits

 Mandatory drills/exercises

 Requiring “Inherently Safer Technology”

 EPA has decided not to define “near misses” requiring 

after-the-fact evaluation

 Creates legal uncertainty/risk
Third Party Audits

 Are Third Party Audits a good idea/better than internal 

evaluations?

 Third Party Audits are required “when an implementing 

agency has made a determination that a third-party audit at 

an RMP facility is necessary”

 Grants too much authority to EPA/implementing agency with no 

defined parameters for the determination

 What other use can be made of Third Party Audits?

 CAA restrictions on public access?

 Use in toxic tort/exposure/citizen suit cases?

 Attorney-client privilege?

 Audit privilege?

3M RMP Facilities

 Mix of Program 1, 2 & 3 covered processes

 Several NAICS code 325 Chemical Manufacturing facilities 

(Program 3 covered processes)
RMP Proposed Revisions-Overview

P1 P2 P3

Third-party audits (applies to the next scheduled audit after an 

accident)

√ √

Incident Root Cause Analysis (only for facilities with 

accidents/near misses)

√ √

Safer Technologies and Alternatives Analysis (applies to P3 

chemical manufacturing facility NAICS codes)

√

Coordinating Emergency Response Program Requirements with 

Local Responders

√ √

Emergency Response Exercises √ √

Information Sharing √ √ √

46
Third-Party Audits - Keep

 Required upon RMP reportable accident only
Third-Party Audits - Modify

 Concerns about availability of qualified auditors due to strict 

qualification requirements

 Potential to discourage use of expert consultants for 

implementation & improvement initiatives if there is concern 

about their future ineligibility as an auditor 

 Consider similar auditor qualifications to ISO 14001 auditor 

qualifications (why develop new requirements?)

 Require EPA to qualify and identify 3rd party auditors, rather 

than placing burden on industry

 PE is not the right qualification. CSP, CPEA, CPSA, degreed 

chemical engineers would be more appropriate
Third-Party Audits - Modify

 Not unreasonable that 3rd party audit requirement extended to routine 

compliance audits in future; not unreasonable to assume OSHA adopts 

similar rule 

 3M has internal Process Hazard Management (PHM) audit program

 Used for years

 Provides valuable internal benefit in hazard reduction and 

training/education

 Could lose this benefit if routine audits become 3rd party

 Allow audit teams to have combination of 3rd party & internal resources

 Clarify scope of the audits

 Allow owner/operator opportunity to review/comment on draft audit 

report prior to regulatory authority
Incident Root Cause Analysis - Keep

 Required upon RMP reportable accident 

 3M already conducts root cause analysis 

investigations

 3M incident investigations already initiated within 

48 hours

 3M encourages reporting near misses
Incident Root Cause Analysis - Modify

 Define “near miss”

 Currently allows after-the-fact evaluation, creating legal 

uncertainty/risk

 Large burden to develop incident root cause summaries on 

all “near misses”

 Could create a fear of reporting “near misses” due to nature 

of releasing details to public

 Limit LEPC summaries to reportable accidents only

 Subjectivity in defining “root cause”

 How do we know for sure that we got to root cause in every case?

 3M would need to develop incident root cause summaries 

suitable for public release
STAA (Safer Technologies and 

Alternatives Analysis) - Keep

 Limited to Program 3 processes in NAICS 322, 324, 

and 325 

 Emphasis on hierarchy of control is valuable

 Not requiring companies to implement IST & ISD for 

processes where feasible 
STAA (Safer Technologies and 

Alternatives Analysis) - Modify

 PHA purpose is not to redesign the process (manufacturing 

does not own product formulation or process design)

 PHA stage is too late for large impacts

 IST & ISD evaluation belongs upstream in product/process 

design stages

 IST & ISD subjective and relative to other options. Opens door 

for second-guessing facilities' analyses

 Significantly expands PHA team member qualification 

requirements (need people with design, financial, etc. 

backgrounds on team)
Coordinating ER Program - Keep

 Coordination with local responders is a good idea

 3M internal programs already address sufficiency of 

external emergency services

 Not requiring all Program 2 & 3 facilities to be 

‘‘responding’’ facilities
Coordinating ER Program - Modify

 Local responder exercise participation not required –

expand to coordination as well

 Address how disagreements between local responders 

and owner/operator regarding which party should 

provide emergency response will be resolved? 

 Need a consistent, formal assessment of whether or not 

local emergency responders have “capability” to respond

 Who does this assessment?

 Hardship (cost and resources) on smaller facilities, 

particularly in rural areas, if they have to become 

responding facilities 
ER Exercises - Keep

 3M internal programs already address practice drills

 Not requiring exercise participation by local 

responders to comply
ER Exercises - Modify

 Eliminate the requirement for tabletop and field 

exercises

 Resourcing annual tabletop & field exercises

 Time consuming

 Cost of full field drills (mobilizing site, local and 

contract responders)

 Very expensive for companies and responders alike
Information Sharing - Keep

 Not changing policy regarding OCA information

 Public meeting only after RMP reportable incident
Information Sharing - Modify

 Too much information required for LEPC & Public

 Big security concerns

 Significant systems would need to be developed for providing 

public information (info screening; CBI, trade secret & export 

control reviews; legal approvals; etc.)

 May discourage companies from continual improvement (i.e. 

digging deeper in internal audits, investigations, etc.)

 Require information to be updated and provided upon request 

only (not annually)

 No “score card”

 Will scores be calibrated amongst independent third-party assessors? 
Other

 OSHA PSM revisions also expected. How are OSHA PSM 

and EPA RMP going to maintain consistency?
Questions discussed during 04/20/16 A&WMA Webinar on RMP Proposed Rule

52 persons registered at the webinar

Does EPA have plans to increase enforcement/inspections for the new rules?

Can you describe in more detail and perhaps with some examples - the activities and outcomes 

EPA might expect for the Safer Technology and Alternatives Analysis?

How did EPA arrive at its assessment that the root cause analyses proposed requirements would 

apply to about 300 facilities per year?

The requirements for a 3rd party audit are very restrictive, what options are available to a facility 

that can't identify a team that meets all these requirements? Can the 3rd party audit 

criteria/qualifications be required for triennial audits?

Has EPA done an assessment of the availability of auditors that will meet the proposed 

competency and objectivity criteria?

The 3rd party audit requires a PE, is it intended that the PE be specifically licensed in the state 

the facility is located?

Will the triennial audits be used to identify significant non-compliance, which will require a 3rd 

party audit?

Consider a facility that routinely uses a pre-qualified and selected independent third-party auditor 

to perform the triennial compliance. The only services the auditor provides to the company is the 

triennial compliance audit. If the facility then has a reportable release that requires an 

independent third-party auditor, would the facility need to find another independent third party 

auditor, or could they retain their established independent third party auditor to do the postrelease audit?

To what agency or organization is the facility obligated to submit the "Lessons Learned" report? 

Is this the "Lessons Learned" Report required after each tabletop exercise are only after field 

exercise?

If you are currently a Program 1 because the facility has not had an accident meeting the 5 year 

and then the facility has an accident meeting the requirement which could then cause them to 

become a program 3, would an audit be required?

Do all members of independent audit teams have to be from outside the facility? Can the 

"someone knowledgeable in the process" be an in house person?

If a consultant provides non-RMP services to a client, would that person (and more importantly 

that consulting company) be considered impartial for the RMP required 3rd party audit?